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REPORT OF THE SPECIAL COMMITTEE 



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CONFISCATION OF COTTON 



SOUTHERN STATES BY THE GOVERNMENT 



JOHN W , A M E R M A N , P R I N T"E R , 
^^^^ 47 Cedar Strekt. 




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REPORT OF THE SPECIAL COMMITTEE 



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CONFISCATION OF. COTTON 



SOUTHERN STATES BY THE GOVERNMENT. 




i^fa-gork: 

JOHN W . A M E R M A N , PRINTER^ 
No. 47 Cedar Street. 



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56 



REPOET OF THE SPECIAL COMMITTEE 

OF THK 

Chmwlr^v t>t (ffi^ntmatc of the ^kk of §ieiv-f ^jvlt, 

ON TUB 

CO]:^FISOATIO]^ OF COTTOjS" 

IN THE 

SOUTHERN STATES BY THE GOVERNMENT. 

SUBMITTED TO THE CHAMBER AT AN ADJOURNED REGULAR MEETING 

ON APRIL 2-Tn, ISCo, WHEN IT WAS ORDERED THAT FIVE 

HUNDRED COPIES BE PRINTED FOR THE USE OF THE 

MEMBERS, AND THE SUBJECT BE POSTPONED FOR 

CONSIDERATION AT A SPECIAL MEETING, TO 

BE HELD THURSDAY, MAY 11, 1865. 



The committee appointed to take into consideration 
and report to the Chamber, at an early day, what 
course ought, in their judgment, to be pursued by the 
Government of the United States, in reference to the 
confiscation of cotton in the Southern States, respect- 
fully submit the following 

REPORT: 

At the outbreak of the rebellion, the inhabitants of 
the insurrectionary States were largely indebted to the 
merchants of the northern cities. The debt owing 
to the merchants of this city alone, it is believed, 
amounted to not less than one hundred and fifty mil- 



• 
4 



lion dollars ; and it is hardly necessary to remark, 
that very little, if any of it, has since been liquidated. 
At present the chief, if not the sole, means of discharg- 
ing this indebtedness, consists of the cotton and other 
products of the soil, which have been accumulated by 
the debtors during the last four years. With a view 
to determine whether the northern creditor may, rea- 
sonably, hope to realize any portion of his demands 
from this source, the committee have examined the 
several acts of Congress which affect the question. 

By the sixth section of an act approved July l7th, 
1862, and the proclamation of the President of the 
United States, issued under it, dated the 25th day of 
July, 1862, all the estate and property, moneys, stocks 
and credits^ belonging to any person engaged in armed 
rebellion against the Government of the United States, 
or aiding or abetting such rebellion, sixty days after 
the publication of the proclamation, shall be liable to 
seizure and condemnation for the use of the United 
States ; and all sales and transfers of any such pro- 
perty, made any time after the lapse of the sixty days' 
warning required by the proclamation, are declared to 
be null and void. This act requires proceedings to be 
instituted against the property seized, in some District 
Court of the United States ; which proceedings arc^ 
required to be conducted, as near as may be, according 
to the practice of the courts in admiralty and revenue 
cases. According to this practice, public notice of the 
seizure is required to be given, and the time and place 
of hearing the cause ; and the claimant has the right 
to appear and interjjose his claim, and contest the fact 
of his having been engaged in the rebellion, or of 



having aided or abetted it.' Under the operation of 
this act, which secures a trial in court, it is plainly- 
intended that none but the guilty shall be made to 
suffer. 

It is to be observed, in regard to the act, that it ren- 
ders liable to seizure and confiscation all the property 
of persons aiding and abetting the rebellion, as well 
the property located in the insurrectionary States as 
in the loyal States; yet, notwithstanding, Congress, 
by an act approved July 2, 1864, authorized the Sec- 
retary of the Treasury, with the approval of the Pres- 
ident,- to appoint agents to imrchase for the United 
States, any products of the insurrectionary States in 
such States, without regard to the question of whether 
such products were liable to seizure and confiscation 
or not ; thus implying that the act was obsolete or in- 
operative in the insurrectionary States. 

The attention of the committee has been particu- 
larly directed to the case of the cotton lately taken at 
Savannah. They believe that judicial proceedings 
have not been instituted by the government against 
that cotton, under the act first above referred to, nor 
are they informed that such proceedings are likely to 
be instituted. It is s|)oken of as " captured " cotton ; 
and it appears to be in the hands of an agent of the 
government, who holds it as captured cotton. Ac- 
cordingly, the committee have been led to examine 
another and later law on this subject, which is supposed 
to be more particularly applicable to the case under 
consideration. 

By the act of March 12, 1863, the Secretary of the 
Treasury is authorized, as he shall from time to time 



see fit, to appoint an agent or agents to receive and 
collect all abandoned and captured property, being in 
any State in insurrection, except munitions of war, 
which, on an appraisement, may be appropriated to 
public use, or forwarded to a loyal State for sale by 
public auction. Any person claiming to have been the 
owner of any such abandoned or captured property, 
may, at any time within two years after the suppression 
of the rebellion, prefer his claim to the proceeds thereof 
in the Court of Claims ; and on proof to the satisfaction 
©f the court of his ownership of the property or its 
proceeds, and that he has never given any aid or com- 
fort to the rebellion, he may receive the proceeds, after 
deducting the expenses of transportation and other 
charges. This act devolves on the claimant the burden 
of proving his innocence. 

It is not probable that any considerable part of the 
cotton taken at Savannah is what may properly be 
called "abandoned" cotton. With the exception of 
the portion belonging to the rebel authorities, it was 
no doubt, at the time it was taken, in the possession of 
the owner or his agent. To bring it, therefore, within 
the scope of the act, it must be considered as " captured " 
cotton. It is to be observed, that neither this nor any 
other act of Congress declares when or under what cir- 
cumstances the property on land of the inhabitants of 
the insurrectionary States may be lawfully captured. 
The act in question only provides for the collection, 
custody and disposition of captured and abandoned 
property, without specifying whose, or the cause for 
which, property shall be captured. The government 
is left, therefore, to the analogies of law to determine 



whether the Savannah cotton, and other cotton simi- 
larly situated, was liable to capture. 

The government, in its external relations to all the 
inhabitants of the insurrectionary States, without regard 
to their loyalty or disloyalty, has hitherto considered 
them as alien enemies, with whom the United States 
were at war. Hence the blockade of their ports, and 
the capture and confiscation of their property on the 
ocean, as prize of war. But nothing has yet occurred 
in the prosecution, of the war, touching the internal 
relations of the different sections of the one nation, to 
indicate that the inhabitants of the insurrectionary 
States are considered to be alien enemies. On the con- 
trary, they have constantly been considered as citizens 
of the United States, owing allegiance thereto, subject 
to its penal laws, and entitled to the protection of the 
constitution and laws, so flir as that protection has not 
been forfeited by personal acts of treason or other viola- 
tions of law. In this aspect of the question, it is difiicult 
to perceive upon what principle their property can be 
liable to capture and confiscation, without a regular 
trial, and without proof of individual and personal acts 
of violation of law. Without doubt, many of the in- 
habitants of those States are innocent of any such 
violations,not having committed them at all, or if, having 
committed them, then under such circumstances of fear 
for their lives or for their liberty, as would very much 
lessen, if not destroy, their moral or legal liability. 

If we consider the people of the Southern States as 
having become, by their ordinances of secession, and 
the war inaugurated by them against the government, 
alien enemies, then the inquiry properly arises, under 



8 



what circumstances is their property on the land liable 
to capture and confiscation. "By the modern usage 
of nations," says Mr. Wheaton, "which has now ac- 
quired the force of law, temples of religion, public 
edifices devoted to civil purposes only, monuments of 
art and repositories of science, are exempted from the 
general operations of war. Private property on land 
is also exempt from confiscation, with the exception of 
such as may become booty in special cases, when taken 
from enemies in the field or in besieged towns, and of 
military contributions levied upon the inhabitants of the 
hostile territory. This exemption extends even to 
the case of an absolute and unqualified conquest of 
the enemy's country." " The property belonging to the 
government of the vanquished nation passes to the 
victorious State." "It is very unusual," says Chief 
Justice Marshall, "even in cases of conquest, for the 
conqueror to do more than to displace the sovereign and 
assume dominion over the country. The modern usage 
of nations, which has become law, would be violated ; 
that sense of justice and right, which is acknowledged 
and felt by the whole civilized world, would be outraged 
if private property should be generally confiscated and 
private rights annulled." The right of an army in the 
field to forage upon the enemy and to destroy private 
property, and even, in extreme cases, to desolate the 
enemy's country, is admitted to be a lawful exercise of 
belligerent rights, when such destruction or desolation 
is necessary to subdue the enemy. But this is a very 
different thing from the general seizure of the private 
property of the enemy, and its confiscation for the use 
of the National Treasury. The one is justified by 



present urgent iioct'ssity, of Avhich the commanding 
general is the judge ; the other is or may be the act of 
the government, done with a view to replenish its 
Treasury. Even when besieged cities arc taken by 
assault, it is not, as we have seen, the practice of the 
government to confiscate private property ; though in 
such cases, private property is sometimes permitted by 
the commanding general to be taken by the soldiery 
as booty, and as a reward for their gallant services. 
Indeed, it is believed that modern public law knows of 
no such term as a capture made on land. The word 
capture is as technical in public law as the word prize, 
and means the takinc: of vessels and a'oods on the ocean. 
The City of Savannah having been evacuated by the 
rebel forces, and occupied by the forces under General 
Sherman, without battle and without siege, and with 
the concurrence of many of its inhabitants, it is hardly 
probable that the government will confiscate any more 
of the cotton found there, than shall appear to belong 
to the rebel government or to convicted traitors. In 
addition to such an act being unprecedented in modern 
times, and unjust to many innocent owners, it is mani- 
festly unfair, unless some provision be made for the 
payment of the just debts, due by their owners to their 
northern creditors. The produce of the country, as 
has been already remarked, is the chief, if not the 
sole, remaining fund out of which these debts can be 
paid ; and in equity and good conscience it ought to 
be held for the payment of them. By the act of March 
3, 1863, Congress substantially recognises this equity, 
by protecting all claims which can be specifically en- 
forced by law against property made subject to confisca- 



10 



tion under the act of July 17, 1862, such as mortgages 
and other liens. In a broad, equitable view of the 
matter, it can make but little difference, so far as the 
claim of the government is concerned, whether the debt 
was secured by a legal mortgage upon the specific pro- 
perty, or whether it was secured by equity and good 
conscience upon the property of the debtor generally, 
his whole property being the basis upon which the 
credit was originally given, and which the law would 
appropriate, in peaceful times, to the payment of his 
just debts. 

The merchants of New-York have an interest, in 
common with the whole American people, that the 
government shall observe the established principles 
of public law and the usages of nations, in prose- 
cuting the war against the rebels ; and the committee 
have unqualified confidence to believe that it will do 
so, not only on account of its own sense of honor and 
justice, but on account of the ancient and well-earned 
renown of the country. They trust that the public 
authorities will not sell the cotton taken at Savannah, 
or any other property taken by the army in its pro- 
gress through the insurrectionary States, and appropri- 
ate the proceeds, without first proceeding to a decree 
of confiscation and sale, in the courts of justice, where 
the rights of the claimants and of mortgage creditors 
can be protected under the law. Furthermore, they 
indulge the hope that, although Congress has been 
pleased to use the word " captured" in a new and ex- 
traordinary sense, the executive will not feel itself 
authorized to consider private property taken on land 
as " captured," and so prize of war, without also con- 



11 



sidering that captures and prizes of war imply prize 
regulations, prize proceedings, prize courts, and fixed 
rules of public law. They cannot believe that the 
government will overlook the large interest which the 
patriotic merchants of this and other northern cities 
have, beyond those of other persons, in having some 
way opened whereby the cotton, tobacco, rice and 
other products of the insurrectionary States, may be 
made available in the payment of the debts justly due 
to them. To adopt a different course, it must be ob- 
vious, will be to deprive the northern merchant of all 
power to collect his demands, and will, in effect, inflict 
upon the whole class of northern creditors a penalty 
due only to traitors in arms against the government. 

Aside from the legal and equitable aspects of the 
subject, the committee submit that there are questions 
of expediency involved which cannot properly be dis- 
regarded, and which, in their view, render it a matter 
of the highest importance that the government should 
publicly declare the policy of recognising the rights of 
private property in the insurrectionary States. This 
is in itself not only just and right, but, at a time like 
the present, it is eminently befitting a great and mag- 
nanimous people. Besides, the omission to make such 
a declaration will, almost inevitably, in the present 
condition of affairs, impel the inhabitants of those 
States to destroy their property, or, at least, to per- 
mit its destruction by the rebel soldiery. On the other 
hand, if the government shall enunciate a policy which 
shall prove to the people of the south that their rights 
of private property will be respected, a powerful mo- 
tive will be presented to them to return to their allegi- 



12 



ance as citizens ; and, at the same time, an important 
step will be taken towards the re-establishment of 
peaceful and profitable commerce between the two 
sections of the country. 

[Signed,] F. A. CONKLING, 

^ A. A. LOW, 

WM. MARVIN, 

JOHN AUSTIN STEVENS, Jr., 
ARCH. BAXTER, 
GEORGE OPDYKE. 



LIBRARY OF CONGRESS 



013 701 743 A • 



